By Eric Glazer, Esq.

Published November 18, 2019

Regardless of what you may think about the impeachment process taking place in Washington, I promise that the impeachment process in your community is worse.

Florida law allows directors in both condominiums and homeowner associations to be removed from office without waiting for the results of the next election.  It’s called the recall process.

Have you ever heard the saying that “if it ain’t broke don’t fix it?”  Well, the recall statute for all intents and purposes worked pretty well.  In sum, a majority of owners could sign recall ballots voting to recall a director.  Let’s say in a 100 unit community you want to remove a director or several directors.  51 homes sign a recall ballot, and it got served on the board.  The board then had 5 days to decide whether or not the process was done correctly and if all the ballots were valid.  Reasons for rejecting ballots include:
 
a) The ballot not being signed by the owner – but by a renter or non owner;
b) The ballot not being signed by the authorized voter of the unit as indicated on the voting certificate for that unit.
c) The ballot being signed by someone who lawfully had their voting rights suspended.

If the Board decided that certain ballots should be rejected and the number of valid ballots were now less than a majority, the Board would be required to file a recall petition with the Department of Business and Professional Regulation.  An arbitrator would be assigned, due process was provided to all and may the better man win.
 
THAT IS NOW DONE AND OVER WITH.

For whatever reason, The Florida Legislature changed this a few years ago.  Now, the recall ballots must be accepted if they are “facially valid.”  To determine whether a ballot is ‘facially valid’, only the four corners of the ballots should be reviewed and extrinsic evidence should be ignored.” Goss v. Cassel Creek Property Owners Ass'n, Inc., Arb. Case No. 2014-02-4990, Summary Final Order (July 15, 2014)

In a recent arbitration case called Roberts, v. Harbour Pointe At River Bridge Condominium Association, Inc. June 25, 2019, the arbitrator ruled that the association could not a) check its own roster including voting certificates in order to determine whether the recall ballots were facially valid; and b) reject 4 ballots due to suspension of voting rights.  The association was simply required to determine whether the form was filled out correctly.  It is irrelevant who it is signed by and whether that person even had the right to vote in the community.  The board must confirm the recall.  The directors are removed.

So, here is where we are at the moment.  One person can sit down and fill out recall ballots that equal a majority of the units.  Let’s take a 25 unit building – so 13 recall ballots are required to remove the board.  These are the signatures on the 13 ballots:

1. Batman

2. Superman

3. Mickey Mouse

4. Donald Duck

5. Pluto

6. Minnie Mouse

7. Dr. Jeckyl

8. Mr. Hyde

9. Ernie

10. Bert

11. Big Bird

12. Cookie Monster

13. Mrs. Piggie

These ballots are served on the Board.  According to the current law, the Board is not allowed to determine if any of these characters are actually owners, because it would require going outside of the four corners of the ballot.  As long as the ballot is filled out correctly, the board member is recalled.

And you wonder why Florida is laughed at by the rest of the nation when it comes to our election process.         

About HOA & Condo Blog

Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2

decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.

Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.

See: www.condocrazeandhoas.com.

He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.

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